John James Berwanger v. Katie Harris, Nurse

United States Court of Appeals
For the Eighth Circuit
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No. 23-2076
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John James Berwanger
Plaintiff - Appellant
v.
Katie Harris, Nurse; Lisa Tyler, Nurse Practitioner; Nurse Doe; Doctor Doe;
Joseph L. Kennedy, Dubuque County Sheriff; Kristoffer Kaberg, Anamosa State
Penitentiary Warden; Dr. Michael Dehner; Laura Barner, Nurse; Vickie Knowles,
Nurse; Sally Potter, Nurse; Barbara Devaney, Nurse; Laura Krugle, Nurse; Erin
Sargent, Nurse
Defendants - Appellees
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: June 12, 2024
Filed: July 30, 2024
[Unpublished]
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Before COLLOTON, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.
Two sheriff’s deputies allegedly injured John Berwanger’s right shoulder
while they transported him from a courthouse to the Dubuque County Jail. After a

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few weeks, Berwanger—now a convict—began submitting requests for medical care
to staff at the jail. Jail nurses always visited Berwanger when he complained of pain
and routinely provided him with over-the-counter pain medications and ice.
Berwanger spent a total of three months in the jail before the Iowa Department
of Corrections took custody of Berwanger and sent him to the Iowa Medical
Classification Center. During his intake physical, Berwanger reported a history of
right shoulder numbness. Berwanger later received a complete physical examination
that identified no shoulder abnormalities. For this reason, Berwanger’s shoulder
pain was treated conservatively with over-the-counter pain medications.
About a week after this complete physical examination, the department
transferred Berwanger to Anamosa State Penitentiary. There, Berwanger again
complained of shoulder pain. At his first visit with medical staff at the penitentiary,
a physical examination identified no shoulder deformities and indicated full range
of motion. Nevertheless, medical staff scheduled Berwanger for an appointment
with a prison doctor.
The doctor examined Berwanger’s shoulder and likewise saw no deformities
and full range of motion. The doctor continued Berwanger’s conservative
treatment—over-the-counter medications and physical therapy—but decided to
track down Berwanger’s outside medical records and order x-rays. The imaging did
not reveal anything abnormal.
Berwanger again complained of shoulder pain a month later and was
examined by medical staff. After again finding nothing significant, they scheduled
him for a follow-up with the doctor. This time, the doctor referred Berwanger to the
University of Iowa’s orthopedic clinic.
Six months later, Berwanger was seen at the clinic. The clinic was not able
to see Berwanger sooner because more than 800 inmates at the penitentiary had
contracted COVID-19 during that time and the University of Iowa’s clinics could

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not accommodate nonemergent referrals. During his visit, more x-rays were taken.
Because they appeared normal, doctors told Berwanger that he could either continue
his conservative treatment or undergo an MRI. Berwanger wanted the MRI, which
ended up showing an anterior-inferior labral tear. Doctors told Berwanger that he
again had a choice between nonoperative therapy or surgical repair. Berwanger
opted for surgery, and a surgeon performed the procedure five months after
Berwanger was first seen in the clinic. Berwanger tolerated the procedure well, and
it was effective in treating his shoulder pain.
Five months after surgery, Berwanger sued the medical staff and others
working at the Dubuque County Jail and Anamosa State Penitentiary for deliberate
indifference to his serious medical needs. See U.S. Const. amend. VIII; 42 U.S.C.
§ 1983. The defendants filed motions for summary judgment, which the district
court1 granted. Berwanger appeals.
We review the grant of summary judgment de novo. Barr v. Pearson, 909
F.3d 919, 921 (8th Cir. 2018). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal
quotation marks omitted). To establish an Eighth Amendment violation, Berwanger
must show that he suffered from an objectively serious medical need and that the
defendants knew of the need yet deliberately disregarded it. See Barr, 909 F.3d at
921. “Deliberate disregard” is “a mental state equivalent to criminal-law
recklessness.” Id. (internal quotation marks omitted). Mere negligence or medical
malpractice is “not enough.” Id. Rather, Berwanger must demonstrate that the
1 The Honorable C.J. Williams, then United States District Judge for the
Northern District of Iowa, now Chief Judge.

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medical staff’s actions were “so inappropriate as to evidence intentional
maltreatment or a refusal to provide essential care.” Jackson v. Buckman, 756 F.3d
1060, 1066 (8th Cir. 2014).
The district court granted summary judgment to all defendants because it
concluded that no reasonable jury could find that any particular defendant’s actions
were “so inappropriate as to evidence intentional maltreatment or a refusal to provide
essential care.” See id. We agree. Each time Berwanger complained of shoulder
pain, jail and prison staff responded and provided treatment. The fact that medical
staff started with conservative treatment and did not diagnose Berwanger’s labral
tear sooner does not raise an inference of deliberate indifference given that he
consistently received treatment. See Barr, 909 F.3d at 921; Dulany v. Carnahan,
132 F.3d 1234, 1240 (8th Cir. 1997) (“[A]n inmate is not entitled to any particular
course of treatment.”). Nor does the length of time that it took for Berwanger to get
into the orthopedic clinic raise such an inference given the exigencies and the
nonemergent nature of his injury. See Jenkins v. County of Hennepin, 557 F.3d 628,
633 (8th Cir. 2009) (“The Constitution does not require jailers to handle every
medical complaint as quickly as each inmate might wish.”). No reasonable jury
could find that any of the defendants were deliberately indifferent to Berwanger’s
serious medical needs, so the district court did not err in granting their motions for
summary judgment.
We affirm the judgment of the district court.
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